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Counsel not ineffective for not striking juror

State v. Todd Brian Tobatto, 2016 WI App 28; case activity (including briefs)

The news, in this otherwise run-of-the-mill case, is the standard of review. Tobatto raises an ineffective assistance claim rooted in trial counsel’s failure to strike a juror for bias. The judge who heard the postconviction motion was not the judge who ran the trial, so she had not observed the juror at voir dire. (¶13). The court of appeals cites State v. Herfel, 49 Wis. 2d 513, 182 N.W.2d 232 (1971), which held that a postconviction judge’s sufficiency of the evidence ruling receives no deference on appeal if that judge did not preside over the trial, and extends it, giving no deference to the postconviction court’s factual finding that the juror was subjectively biased. (¶18).

From there, it’s just law meets facts. The juror in question, in this trial for stalking and violating a restraining order, said during voir dire that an ex had threatened her and that she’d gotten a restraining order. Asked if she could nevertheless be fair and impartial, she replied “I don’t know if I’ll be a hundred percent objective because I had my personal experiences that impact what I believe now as far as the law. I mean, I’m not going to go against what that says, but I know that’s for interpretation as well.” (¶20). Per the court:

Juror 10 told the trial court that she was influenced by her experience with the court system, but would not go against the letter of the law. In short, Juror 10 was honest. “[A] prospective juror need not respond to voir dire questions with unequivocal declarations of impartiality. Indeed, we … fully expect a juror’s honest answers at times to be less than unequivocal.” State v. Erickson, 227 Wis. 2d 758, 776, 596 N.W.2d 749 (1999) (emphasis added). Because we are not persuaded that Juror 10’s responses unequivocally revealed subjective bias, we conclude that counsel was not ineffective for failing to remove Juror 10 from the jury panel. See State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994) (counsel is not ineffective for failing to pursue a meritless issue).


As for the claim that counsel should have exercised a peremptory strike, the court concludes that there were valid strategic motivations for this decision:

Of the thirty prospective jurors, nine revealed histories of “bad breakup[s]” or domestic abuse. Because counsel was given five peremptory strikes, he obviously could not have eliminated all nine of those potential jurors. Counsel explained how he used his five peremptory strikes, telling the postconviction court that he sought to remove jurors who he perceived as highly emotional, blatantly impartial, and not confident in their demeanors. Juror 10, he stated, did not fit these descriptions, so he did not remove her.


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